*1 charged the rule to show cause. The defendants ask this Court to reverse the order. of the fact view the matters embraced in those proceedings have, because of our become decision, we do not enter moot, into a discussion them and we affirm the Chancel- lor’s action in the rule. discharging Court
The order of the below the defend- reinstating lodges ant the defendant turn reversed, will lodges to the Lodge over Grand the charters, books, supplies, and other records, funds belonging Grand under Lodge forfeitures, defendant financial will account for all officers moneys received them since spent by February 1954. The record for any is returned to the lower Court further action justice equity may require effectuation including decision of this Court, dismissal the Counterclaim. Costs both borne, appeals, the defendant lodges. Bell dissents. Justice
Mr. Appellant, v. Park Lane For Jones, Convales Inc.
cents, *2 Before November C. Argued J., Stern, Mtjsmanno JJ. Jones, Bell, Arnold, Stearns, Lewis H. Van him E. with John Dusen, Jr., Walsh, Albert M. Jr. and Biddle & Soyt, for Drinker, Reath, appellant.
Simon him Maxwell E. Pearl, Verlin, ap- pellees.
Opinion Me. Chief Justice Hoeace Feb Steen, ruary 1956:
Plaintiff appeals from the refusal of the court below enjoin an intended defendant’s1 it ground that would constitute a violation of a re- striction in the title deeds.
Plaintiff is the owner of on the premises fronting *3 southwesterly side of Wissahickon Avenue in the 22nd Ward of the of City a of Philadelphia, portion which he in 1914 and another acquired in portion 1924. On the northeasterly Wissahickon Avenue is the side.of property 6611 Wissahickon Avenue now owned de- by to which it fendant, was recently conveyed by High Inc., formerly known as The Oaks, Sani- Philadelphia torium Inc. for Christian it been con- Scientists, having veyed latter as of part a tract in larger by 1952 Little of the Sisters Assumption School for the Train- of ing Nurses. It is subject to a building restriction which imposed the tract upon one by Anna M. Smith, conveyances her in 1910 as fol- lows: “That the said lot or piece ground hereby granted shall used for the purpose erecting thereon private dwellings appurtenances there- to and that not moré than such two dwellings and the thereto shall be erected appurtenances thereon. Fur- ther that the cost of erection of each of such dwellings Convalescents, Inc., to Lane "Defendant” refers The Park for prosecuting appeal against Oaks, plaintiff High not bis Inc. no Further $10,000 shall be less than outbuilding a thereon within shall be erected stable .. .”. Plain- of 150 feet of Wissahickon Avenue distance subject property im- tiff’s a similar acquired posed upon title he it in the deeds de- had M. she to whom Smith, from son of Anna residuary her estate. vised parties in these restric- all the interested including present plaintiff defendant’s
tions, they writing predecessor agreed should in title, premises permit af- of the as to the use be modified so thereby organization purposes for the fected Assumption for the School the Little Sisters of permit Training the erection and to of Nurses, buildings premises for additional remain purposes, otherwise to but the such Assump- Little Sisters in full force and effect. Training is a charitable of Nurses tion 'School for the educating for conducts a novitiate institution which nursing studying postulants sis- become and novices premises poor, occupied it ters of the sick conveyed purpose question it until 1952 when for such Philadelphia Inc. Sanitorium High The latter Inc. Oaks, now Christian Scientists, premises presently operates private sanitarium portion of its to the rear of Street, Hortter 609 West *4 premises. Lane .for The Park Avenue Wissahickon plans con- use its Inc. to Convalescents, purpose' nursing for that to home, and valescent necessary but no external alterations interior the make proposed changes use which It is that or additions. enjoined sought plaintiff in the court below. to have properly the and determine consider In order important outset have question at the it is involved legal principles applicable been have in mind consistently ap- frequently reiterated, enunciated, 272
plied, through long succession of cases decided variously they phrased, this court.2 However are, that restrictions on the substance, use of land are not they favored law because are an interference enjoyment prop- with an free owner’s and full of his erty; nothing will deemed a violation of a re- plain express disregard striction that is of its rights implied arising that there are no words; from recognize; a restriction which the courts that a will re- implica- enlarged by striction is not to be extended every tion; restriction will be most construed strictly against grantor every doubt am- biguity language in its resolved favor of owner. limiting right Restrictions to deal owner may naturally with his land as he desire fall into two consisting distinct classes, one restrictions on type buildings number erected there- subsequent and the other on on, such build- ings. The restrictions in the former class are con- physical aspect appearance cerned with or external buildings, pur- those in the latter class poses buildings for which the are the nature used, operations occupancy, their and the conducted therein 2 Examples: Appeal, Andrew’s Lutheran Church’s 67 Pa. —St. Church, 512, 520; 212, 213, v. St. Clement’s 209, 208 Pa. Crofton 76; 570, 572; McCloskey Kirk, 319, 73, 326, v. A. 57 243 Pa. 90 A. Jones, 389, 386, 649, 650; Johnson v. Rohrer v. Trafford 244 Pa. 90 A. Company, 299, 297, al 1050, 1051; Estate 259 Pa. A. 102 Re Carson, 603, Earle, 599, 343; Dewar v. DeSanno v. 259 Pa. A. 103 Taylor 265, 202; Lambert, 270, 200, 514, v. Pa. 117 273 A. 279 Pa. Gibbs, 516, 169, 170; 428, 431, Satterthwait v. 124 A. 288 Pa. Levin, 862, 863; 530, 535, v. 534, 593, 594; Brown Pa. 295 A. 145 Kelner, 515, 63; Henry 509, 61, Eves, 516, Peirce v. 304 Pa. A. v. 156 250, 258, 259, 857, 859; Kessler v. Lower Merion Pa. 159 306 Township District, 305, 308, 309, School 118; 30 A. 2d Baederwood, Moyer, 35, 41, Inc. 249; Pa. 87 A. 2d Hoffman Balka, Superior 344, 347, v A. 2d Ct.
273 affecting and comfort welfare health, building neighbors. use restric and a restriction A independent wholly one another, and, tion are legal principles the one is above stated, view of in the other unless to include to be extended so as plainly to expressly stated; tention so do examples deny of cases As enforcement. doubt is both the to restrict intention was where manifest may buildings be cited John their use erection of the restric where 244 90 649, son v. Pa. Jones, 386, “ dwelling nothing or . a church but tion was any part upon . be erected house . . ever shall shall erected structures so that none land; said manufactory place, or drink be business ever used as purpose any ing than a dwell other or used for saloon, ” necessary outbuildings ing or a church.’ or its house, 124 A. Pa. 92, in Drucker v. 443, So, Russell, also, building that “.. . each of said was where dwelling improved least house at lots be with a shall , portion of the high, . that no said three stories . and buildings ground to be erected thereon or of the lots of intoxicat for manufacture or sale shall be used any ing liquors, or industrial commercial or for other Taylor purpose.” Pa. Lambert, 514, Likewise in “ . . there was 124 A. where , upon . . lot of the above described be erected shall not any building buildings part ground thereof a or de or private purpose dwelling signed other than a for building thereon no such erected shall and that house, any purpose pri occupied other than used ” Again, dwelling in Fox v. Sumerson, house.’ vate the restriction 2d where “ buildings land herein . the dwelling private nothing other than shall be described buildings to be erected . . . that no houses; any time hereafter forever altered into or at shall be *6 ” used for .other than purpose designated.’ as above Numerous similar re- illustrations be of might given strictions expressly both the of covering buildings type to be erected upon the land and limitations their use. subsequent
In present the case the restriction falls with- clearly in the class of those which are their by limited terms the of type buildings be erected on land the not to their subsequent use. The restriction is that the or shall piece ground lot be used for the pur- pose erecting thereon private and the dwellings, fact that the purpose the restriction is to the safeguard of the appearance neighborhood for providing desired architectural type, symmetry, and spacing is shown structures, by the further that provision not than more two dwellings should be erected there- that the cost of on, each dwelling should be not less than and that no stable or $10,000 outbuilding should close the front of the property on Wissa- hickon Avenue. The restriction no contains statement or provision whatever as to the subsequent occupancy of the structures the uses to which they might term devoted. The “dwellings” “private dwellings” obviously employed is contradistinction to such as types buildings stores, factories, hotels, assembly and other structures. halls,
In St. Andrew's Lutheran Church’s Appeal, 67 Pa. the restriction was that no building should be built than other as and for a private after dwelling-house; the lots were thus improved the restriction was to be of no further effect, meaning merely, the court said, it was not intended as a perpetual inhibition but confined to the improvement. It was there first Mr. Justice stated (pp. 518, 519) that Sharswood “The covenant is directed against building alone, the subsequent and when a use, building is law- far as build- of the so lots, erected on either fully at end.” an covenant ing concerned, 239 Pa. v. Parker, Hoffman be erected no should buildings was that apartment dwellings, land other than churches, An of one dwell- occupant and schools. houses, set exterior of house, changing without ings, basement sale of foodstuffs. store up the restriction this did not violate The court said if and that buildings to the erection of regard *7 use intention it would it had been the such prohibit matter to frame the which simple language been a have 400, the court added (pp. would and provide, 399, so restrictions as those under 865): A. “Such p. consider- beyond not extended their they ation are but lawful, are As limit intent. plain necessary they operate his lawfully an owner devote might uses which There no construed. is strictly must property, they of and the court can- terms, extension their equitable not not read into them an intention which does plainly from the of the restrictions.” The build- words appear not having been erected as a ing dwelling house, in having been altered external court held any way, use not put to which it was a violation was of “the matter the external and that restriction, the agreement construction the one is deals.” A. Mamnett v. Pa. 93 247 Born, 418, 505, that no more than one dwelling
restriction was house feet on each 40 should be erected or laud. maintained It held that it the erection was was not violated two occupied by each of which would be duplex houses : was 505) court A. “As p. families. The said (p. 420, St. Andrew’s Church’s said of similar in Pa. is directed against 67 the covenant App., 512, its when building subsequent alone, use, building lawfully erected either so lots, on building far is concerned the is at an covenant This in end.” decision followed Rohrer v. Traf Company, Real Estate 259 Pa. 102 A. 1050, ford and Peirce v. Kelner, A. pertinent other
The above and authorities are col- 2d lated Dishler, Kauffman 389. In that a restriction that not more case than one pri- same to be detached or house, semi-detached, garage, vate should be each was held lot, prohibit apartment building not to of three-unit though occupied by houses even these more would family. than one The conclusion there reached from (pp. p. 391) an examination of the cases was 68, 69, . . all “. are uniform to authorities the effect against that a restriction the erection of a other ‘dwelling than a ‘house’or a house’ is a restriction regard type construction and not the subse- quent if use, restriction on intended plainly expressed implica- it should be and not left to tion.”
Appellant relies the decision *8 case of Knight, v. Gerstell 26 A. 2d where a provided only, covenant in a deed that one “residence” only should on the land and it was held built that family reside one land should and that the house had built thereon been could not be altered into for wholly two families. The decision turned residences only” on the words residence “one which the court, correctly distinguish whether or otherwise, chose to dwelling building” from house” or “one as em- “one bodying the connotation of the use of the land for oc- cupation by only family. one give support authorities full
The to the court’s de- injunction present nial of an to enforce this restriction. dismissing the court The final order and decree of of appellant. the cost is affirmed at complaint Dissenting Opinion Me. Bell: Justice proper What is narrow: The involved question the light construction this restriction is: “Under the “record facts”? The that Restrictions following Building subject Purpose only shall be used Property said appurte and the thereon Private dwellings* erecting such dwell not more than two thereto and that nances shall be thereto appurtenances ings .” . . . thereon, The “12. plain- averred: Complaint
The
in Equity
premises
in which the
the neighborhood
tiff avers that
a residential
located is
defendants are
plaintiff
owned
of the premises
and that
use
proposed
one
with residen-
incompatible
. . .
by defendants
would
the fre-
require
would
tial
use
proposed
such
use;
from
running
driveway
of the
new
proposed
quent
employees
physicians,
Wissahickon
patients,
Avenue
the defendants
of the
homes which
nursing
and visitors
cause
use would
operate;
proposed
such
propose to
objectionable
subjected
noises,
to be
plaintiff
that such pro-
the summer months;
particularly
enjoyment
deprive plaintiff
use would
posed
. .
.”
dwelling
private
plaintiffs
this was
deny
did not
Defendant not
ob-
by filing preliminary
but
neighborhood,
residential
prop-
were
the facts which
as true all
jections admitted
In my opinion intended “that parties clearly said shall he property used for . . . private dwell- and ings The appurtenances.” majority limits opinion erection original permits a pri- vate one dwelling day after to be there- house, erection, after altered “used” radically for an entirely dif- ferent purpose. That is contrary language, meaning and intent of the Although restriction. majority opinion is careful not to it say logically so, and necessarily holds that owner the servient tenement can one month or one the erection day after of a private dwelling completely remodel interior or exterior of the private or dwelling since both, the restriction has no application to use —which ig- nores its use provision and clear it change into intent — it for a store a commercial or a sanitarium or a building other every con- ceivable use. I this so believe is unreasonable as absurd.
Whenever two interpretations of a written instru- ment are reasonably and one construction possible, pro- duces a reasonable result which is accord with the likely clearly possible object, purpose and intent and the other parties, construction produces re- sult unreasonable or the latter absurd, con- struction should never adopted.
Furthermore, this controlled Gerstell v. Knight, 83, 26 2d In Gerstell v. Knight, Pa., supra, owner, conveyed by deed containing following covenant: “. . . one residence only shall be built on the described tract above of land and said residence shall not be nearer to Shawnee Avenue than twenty (20) feet.” The defendants subsequently acquired the land and constructed a magnificent residence which com- the restriction. plied with 1940 they proposed to *10 duplex for two into residence residence a this alter original plans. The Court in accordance with families altering enjoined into the house the defendants from present not in did Chief Justice The two residences. present ground, place name- his his dissent on that case “original and ly, erection word “built” meant that the very ground, the viz., on the different not usebut houses on the number of was “a restriction covenant occupancy be built on the on tract, it he residen- built other than that the house when purposes.” this limited construction tial Even rejected by majority position of the a Court. were opposite an instant case the Chief Justice reaches not limited to resi- the restriction is conclusion, viz., permits (altered purposes, to*he but the house dential purposes. meaning and) non-residential The used for manifest, repeat, present and its I restriction is, specifically governed by interpretation the Cferstell is case. opinion majority quoted in the or
The cases cited principles general of law that lay well established down strictly construed. restriction should a cannot be used to rule of construction this However, parties (unintention or to the intentions of the defeat language ally) negate restriction or or distort the meaning meaning which will give it a different produce absurd result. Further an unreasonable principles general enunciated cases and more those this because this case do not control therein and each case restriction in those cases differs from language controv depends restriction in on the particular ersy* in >the case. the facts * reasonably suscepti- the restriction was cases of said In each Court, interpretation placed it the lan- ble of. opinion be read therein must course Con- guage Court’s n particular that case. nection
The majority opinion in the last relies, analysis, four' each of which cases, distin- unquestionably from the guishable instant case. The first case, the one both upon which opinion and majority appellee place most reliance (the leading so-called of) case St. Andrew’s Lutheran Church’s Appeal, *11 Pa. 512. The in restriction the deed in that case was: “. .. no should be building built either of the upon of several lots to be used for ground, purposes other than as and private for a . . . dwelling-house, office, or .... . . stable; Provided . that whenever either of the of said lots shall ground be improved by buildings as herein . . . then above-mentioned, thence- from the sañd . restrictions . . ... deemed and shall, forth considered no .. . .” The effect, force further majority opinion accurately this says not “was intended as a perpetual but [by inhibition, specific its was confined to the language] improve- first It ment. was there stated Mr. Justice by Sharswood (pp. 519) that 518, ‘The covenant against directed the not the building alone, subsequent use, when á is lawfully erected building on either the so lots, far as that the building covenant is at concerned, ” an end.’ The of Justice Sharswood language was undoubtedly appropriate covenant there in- but it has no volved, equally clearly, effect or applica: tion the different totally covenant here involved. v. Parker, 86 A. 398, was 864, Hoffman upon the second case relied the heavily by majority. is clearly It likewise distinguishable because of its the prohibited facts. The erection of any other than building apartment flat dwellings, houses, private schools or A churches, garages. dwelling house the there erected and as Court wás foundthere in has been no the change building, except that the has shelves basement defendant vastly How goods her sale places she [for food]”. fi’om facts are the facts that case different has like- majority opinion case. What the instant is that inadvertently overlooked wise defendant house. as her dwelling house dwelling still used private change no authority case is Obviously sanitarium, into an enormous house dwelling after one day would majority permit, change it, a different its into erection, different desire. may defendant use which was Hamnett Born, that case majority. case relied next “ a period during restriction was house dwelling more than one ... no (10) years of ten ” foot land.’ on each 40 maintained be erected or shall violated that the restriction Court held This since it would still house duplex the erection of a restric meaning house” within “one dwelling *12 two families. used as such though even tion, in the majority relied authority The fourth Pa. v. 380 110 Dishler, opinion Kauffman “ ‘That not more 2d In that case the restriction was same to be detached semi-de one (1) house, than be erected on each shall private garage tached, not was held prohibit . . . .” This restriction lot in house, of a three-unit since apartment erection that came within the definition of Court’s opinion in in that restriction. The question as used a house tersely decision were thus and the Court’s volved Chief Justice who wrote stated accurately Stern, scope concerns the “The opinion: question a a in restriction in used ‘house’* term * dwelling private Ras “a much more restricted Rouse mean- A single dwelling’ ‘dwelling ing or ‘house’ or ‘one does house’ than Taylor Lambert, private v. sanitarium”: a include not A. 169. 124
deed .... It is our conclusion, that there therefore, is nothing present in the restriction that ‘not more than one house shall be erected on each lot’ which would justify interpretation an that would make it read: single-family ‘that no more than one house shall be ” each lot.’ by any It language cannot be contended stretch of “private dwellings” pres that the words used ent restriction can be construed to mean or include a ibuilding or a store commercial sanitarium;* way majority only opinion attempts justify its construction to hold that the restriction in the in applies original stant case erection and does prohibit affect or not material alteration dwelling'for entirely an different use.**
Although general language broad can be found opinions respect subsequent some such lan- use, guage must be read connection with and limited to particular the restriction and the in that facts case. See example, St. Appeal, Andrew’s Lutheran Church’s supra. analysis An Pa., of each case demonstrates single authority that there not a a re- limits present original striction such as the one to erection subsequent conflicting authorizes or diametri- cally different use.
*
private dwelling
A
house has “a much more restricted mean
‘dwelling
ing
single dwelling’
than
house’ or ‘house’ or ‘one
and.does
Taylor
private
Lambert,
include a
sanitarium”:
9
I the order would reverse court. dissent- this joins Allen M.
Mr. Justice Stearns ing opinion. Appellant.
Glazer v. Kurman, 1956. Before C. Argued January J., Steen, JJ., Chidsey Stearns, Jones, Bell, Musmanno, him Walter T. Darmo- Frank Kingston Smith, & Darmopray, appellant. Smith Hamilton, pray